Is the Public Charge Rule Being Thrown Out? [November Updates]


Public Charge Rule

Do you want to learn more about US immigration? Andres Mejer, the green card doctor, aims to help 5,000 immigrants obtain legal status in the next five years. If you want to learn from the expertise of this New Jersey immigration attorney, read on below to find ways on how to make your immigration application smoother and less stressful.

As an immigrant himself, Andres can empathize with other aspiring immigrants like you as he once had to work his way through the complicated immigration system to obtain his US citizenship. But circumstances are changing and right now, one of the biggest things happening was a decision on Public Charge released in Chicago. 

The plaintiffs in the case Cook County – Illinois v Wolf appear to have succeeded in throwing out the new public charge rule when Judge Gary Feinerman from the Northern District of Illinois, granted summary judgement for them. A Summary Judgement is when a judge presides over a case that has been evaluated to have no factual disputes, ergo a decision can be made without going to trial. 

The judge’s ruling over the case acknowledged the following elements:

  • that the DHS’ Public Charge rule violates the Administrative Procedures Act under INA 8 USC 1182(a)(4)(A),
  • it is not in accordance with the law, 
  • it is arbitrary and capricious. 

It is important to understand what each of these three elements means. To do that, you need to know the process of how the judge arrived at the decision. Rulings go through a process. First, the judges review the case by looking at the facts, then the current laws, or laws in place when the case in question occurred, and then into the decision of other judges that worked on similar cases. Finally, using all available information, they decide on the outcome.

The defendant and plaintiff are given an opportunity to present their arguments. But like the defendants and plaintiffs themselves, judges also do not like to lose. A loss from the perspective of a judge is when a decision has been made, but one of the parties submits an appeal, or takes the matter into another court where the decision becomes changed. Getting a case back with the original decision modified implies that the former judge who looked at the case got it wrong. 

Looking at a Prior Supreme Court Ruling on DACA

To avoid facing a loss, almost every Judge makes their decision with supporting case law, laws and policies, to avoid having the higher court send it back to them. Going back to the case Cook County – Illinois v Wolf, a similar case has been processed in the summer with DACA. 

In this other case, the Supreme Court said that the Trump administration could not change DACA the way they had because the way they did it violated the APA. However, some people misinterpreted the court decision to mean that the Trump administration could never end DACA. 

What led to the supreme court ruling was the fact that the Trump administration took a bold move which suggested that they do not care what the highest court of the land says. If you have followed the case, you will know that most of the conservative Supreme Court judges dissented the majority decision in that case. 

Public Charge Decision and its Impact on Immigration 

Now, how is this all connected to the public charge decision? This case has implications because Amy Coney Barrett, a Supreme Court Judge, and Ruth Bader Ginsberg are now gone. 

When it came before her in the lower (7th district) court, Justice Barrett disagreed with ending the Public Charge rule, but now that she’s gone, it means the decision could be very different. Add this to the fact that most of the conservative judges (except for Roberts) expressed in a dissent that the Trump administration did NOT violate the APA and could end DACA. 

If the Supreme Court agrees to hear this in a process called granting certiorari, the questions to ask are these: When will the court hear it? Will they allow for a faster hearing or will it happen after Biden takes office as the President? If so, will he drop the lawsuit as he has said he will get rid of Public Charge?

Immigrants who applied before 11/02/20

Although there are no definite answers to these questions, we know that the Public Charge decision took effect November 2, 2020 while the public charge took effect on February 24, 2020 If you applied to be an immigrant or processed your immigration papers  within those dates, then you need to be prepared to submit the form (I-944) and information necessary to avoid having your application denied by USCIS. 

Immigrants who applied after 11/02/20

On the other hand, those who applied after November 2nd should go ahead and gather information but NOT submit it. The public charge ruling said you do not need to submit an I-944. And, since an injunction was issued in July, no one outside the US has had to or should submit the DS-5540. 

Summary of the public charge decision

Here is a summary of the important elements of the actual public charge decision:

  • In July, the Judge had originally issued a preliminary injunction against Public Charge being enforced by DHS saying it violated the law. 
  • The Judge said that DHS’ Public Charge rule violates the Administrative Procedures Act under INA 8 USC 1182(a)(4)(A). 8 USC 1182 talks about aliens (people who are not US citizens) and their admissibility to the US.
  • The 7th District affirmed the injunction (in July) and so Judge Feinerman said the law needs to be vacated and cannot be applied. 
  • Therefore,  Judge Feinerman issued the summary judgment. 

The federal attorneys had admitted if the 7th district upheld the injunction then Public Charge was invalid. So, the Judge said that the Public Charge rule is not in accordance with the law. The Seventh District said that Public Charge is both substantively and procedurally defective under the APA. They said that the language used in the rule is ambiguous, arbitrary, and capricious. What the court meant by this is that there were significant flaws throughout the rule – in both the language and application. With this reasoning the court then said that the APA itself requires a court to vacate the rule.

The Plaintiff’s also argued that the Public Charge rule violated the 5th amendment because it requires equal protection of the law based on race, ethnicity, and national origin.  The government can’t use the laws because it dislikes certain races, ethnic groups, or people of certain foreign countries.  Remember this was one of the arguments regarding the Travel Ban.   

Their argument means that the government is discriminating against certain groups and violating the 5th amendment. If the Judge agrees with this, then a permanent bar can be issued against DHS and its officials preventing them from ever implementing the Public Charge.   

In a nutshell, there is an orderly way to do things and the way this Public Charge was put in place is not it. 

If you are worried about immigration, or have questions regarding the big things happening on the news, you can reach out to Andres Mejer, The Green Card Doctor, or use the Free Immigration Check Up tool on his site. Any questions about immigration cases, scheduling concerns, or attorney fees can also be discussed over the phone at 888-6956169. 

Have questions about your case,but unsure where to get help? We are happy to set up an appointment and do that even if you don’t want us to process your entire case. Andres Mejer Law has a very high success rate for our clients, and we are often able to achieve solutions for them where other attorneys failed. 

Immigration Solution for Individuals and Families

Aside from helping individuals and families get a green card, we also assist you to apply for a marriage-based green card. Green cards can either be conditional or permanent, and which type you get will depend on your circumstance. In addition, if you are a green card holder, you also need to renew your card. Having a “permanent” green card is no guarantee that you will not be deported because there is a requirement to renew the card every 10 years. The good news is that our New Jersey Immigration Law Firm has handled thousands of cases of green card applications both for family-based immigratoin and marriage-based immigration, as well as renewals. Don’t leave your legal status up to chance! Contact the Green Card Doctor today to get a legal check up!

Frequently asked questions

Can you leave the US for more than 180 days on one trip?

When you have a permanent green card and you left the country,  USCIS will assume you abandoned your green card. This means your status may no longer be valid or legal. To avoid this from happening, make sure before you travel that you are able to come back. Keep in mind that anytime you leave the US and come back, you are never guaranteed reentry unless you are a US Citizen, regardless if you have an advance parole, or have a history of travel, or has a re-entry permit. Each time you enter the land, the Customs and Border Patrol (CBP) decides if they will let you in. 

What is Advance Parole? 

Advance Parole is for people who have no permanent status. Therefore, if you have TPS or DACA, you could apply for Advance Parole before traveling. This is similar to an advance “permission” to leave the US and re-enter. It is like a visa giving you permission to enter the US legally. Take note that you will still need a valid passport to enter the US when you have advance parole.

What is a re-entry permit?

If you have a green card you can apply for a re-entry permit. This permit says that you are planning on leaving the US for over 1 but less than 2 years. If you do not return before that time, you are considered to have abandoned your green card.This permit is like a passport. However, as I just mentioned, CBP doesn’t have to allow you back in, even if you have Advance Parole or a re-entry permit. 

Will USCIS make it harder to get a new green card if you have abandoned one green card? 

They may. You showed the government, by your actions, that your intent is to NOT stay in the US. Therefore, this will be considered in any subsequent applications. 

Does a second green card application take longer?

It takes the same amount of time to get a new green card if yours has been invalidated due to abandonment. There is no faster processing time because you were previously a green card holder. If you are approved, you must be a green card holder for the same time required during your first process before you can apply for citizenship, etc. What I mean is that none of the time you were a green card holder before counts as time toward becoming a citizen this time around. 

What can you do if you want to travel for longer than the time periods allowed? 

If you are traveling and you are a green card holder, you should know that if you leave the US for more than 6 months (180 days), it can be considered abandoning your green card. 

What about if you are stuck outside the US due to COVID, can you apply for re-entry when you are outside the US? 

Unfortunately you cannot apply for a re-entry permit from outside the US. However, if you are stuck outside due to having COVID or because all your travel arrangements were cancelled, you may be able to use supporting documentation (like doctors notes or airline notifications) to prove these were circumstances beyond your control. You may be allowed to appear in immigration court and explain what happened. 

What about if you can’t get back in due to COVID and your Advance Parole or re-entry expire? 

If you are outside the US for over one year, your green card can be  invalidated. You must prove that you always intended to return to the US. That circumstances beyond your control kept that from happening. And that you still have ties to the US and want to live here. And finally, you could argue your case in front of an immigration judge. We highly recommend if it comes to that, that you hire a qualified immigration attorney. COVID is not going to give you a free pass. 

Are there exceptions that you must meet to overcome this automatic abandonment? 

If you are an H or L visa holder and you want to travel, talk to an immigration attorney. They can help ensure you meet all the necessary criteria. You should also know that if you have been deported, and your time bar/ban is up – you can’t just re-enter the US.

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